By Darrel Rowland
Ohio’s smoking ban is legal, a unanimous Ohio Supreme Court ruled today.
The high court’s 7-0 decision affirmed a ruling by the Franklin County Court of Appeals upholding the Ohio Smoke Free Workplace Act, approved by Ohio voters in 2006.
Today’s decision, written by Justice Judith Ann Lanzinger, rejected claims by the owner of Zeno’s Victorian Village that state fines against his bar for violating the statewide ban on smoking in workplaces exceeded the state’s legitimate police powers or were an unconstitutional governmental “taking” of private property.
“We have previously stated that the General Assembly has the authority to enact a public-smoking ban,” Lanzinger wrote, citing a 2002 Supreme Court case.
“Although the Smoke Free Act was ultimately passed pursuant to a ballot initiative, the voters of Ohio also have a legitimate purpose in protecting the general welfare and health of Ohio citizens and workforce from the dangers of secondhand smoke in enclosed public places. By requiring that proprietors of public places and places of employment take reasonable steps to prevent smoking on their premises by posting ‘no smoking’ signs, removing ashtrays, and requesting patrons to stop smoking, the act is rationally related to its stated objective.”
Maurice Thompson, an attorney for the 1851 Center for Constitutional Law, a nonprofit legal center that represented Zeno’s, called the decision “shameful” in that it seems to give government a free hand in deciding how it will deal with use of private property.
“It really means there is no meaningful limit on regulation of private property in Ohio,” he said. “For us at the Constitutional Law Center, this was about private property rights, not about bars or about smoking.”
Thompson said his client has not decided whether to exercise the option of asking the Ohio Supreme Court to reconsider its decision.
The ruling has national significance, said Chris Hansen, president of the American Cancer Society Cancer Action Network, the nonprofit advocacy affiliate of the American Cancer Society, in a statement.
“Today’s decision represents a major blow to the tobacco industry’s ongoing efforts to defeat proven tobacco control measures nationwide that discourage kids and adults from smoking and save lives,” Hansen said.
Dr. Deepak Kumar, president of the Ohio State Medical Association, said in a statement: “Ohio’s physicians commend this ruling and hail it as an important public health victory. Ohio has seen a tremendous public health benefit since the passage of the Smoke Free Workplace Act as this law protects the public from exposure to secondhand smoke in workplaces and public places.”
Attorney General Mike DeWine, whose office represents the state health department, said, “This is great news for the health of Ohioans and for the democratic process. The Ohio Supreme Court has upheld a law passed by a statewide majority of Ohio voters, and patrons and employees of Ohio businesses will continue to enjoy surroundings that are safer because they are smoke-free.”
Lanzinger rejected contentions that the actual smokers, not the owners of establishments where smoking occurs, should suffer the consequences – especially if the owners have posted no-smoking signs and removed ashtrays.
“It is not unreasonable or arbitrary to hold responsible the proprietors of public places and places of employment for their failure to comply with the Smoke Free Act,” Lanzinger said.
“Our review of the act leads us to conclude that it is neither unduly oppressive nor arbitrary in its restrictions. Appellants’ own witness testified that most patrons who are asked to stop smoking readily do so. We therefore hold that the Smoke Free Act is a valid exercise of police power.”
She also noted that Zeno’s and others “have failed to demonstrate that the Smoke Free Act has had a significant economic impact on their business.”
The bar at 384 W. 3rd Ave. owes $40,457 in fines and interest penalties for numerous smoking-ban violations. The state is threatening to seize and foreclose on the Harrison West bar to get the money.
Enforcement of Ohio's smoking ban began in May 2007, affecting 280,000 public and private places of employment, the Ohio Department of Health says.
Secondhand smoke causes 46,000 deaths from heart disease and 3,400 lung cancer deaths in otherwise-healthy nonsmokers every year in America, anti-smoking advocates say. They also say secondhand smoke contains more than 60 known or probable carcinogens and more than 4,000 chemicals, including formaldehyde, arsenic, cyanide and carbon monoxide.
As of March 1, 2010, 32 states plus the District of Columbia and Puerto Rico require 100 percent smoke-free workplaces and/or restaurants and/or bars, anti-smoking groups say. The count more than 3,000 municipalities with local laws restricting smoking; those areas combined represents more than two-thirds of the U.S. population.
Zeno’s won a case to dismiss its fines in Franklin County Common Pleas Court but lost an appeal in the Franklin County appellate court in November 2010. Since then, it has gained the backing of the 1851 Center, the Ohio Licensed Beverage Association and the Buckeye Liquor Permit Holders Association, among other groups.
Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Robert R. Cupp and Yvette McGee Brown. Justice Terrence O’Donnell concurred in judgment only.
